Gov. Rick Scott had no authority to suspend appointee for 'malfeasance,' judge rules

The governor could show no "malfeasance" by an appointee to a hospital board, she rules.

Published April 11 2016
Updated April 12 2016

TALLAHASSEE — Gov. Rick Scott had no authority to suspend a political appointee from office without providing any evidence of "malfeasance," a judge ruled Monday.

The decision by Broward Circuit Judge Carol-Lisa Phillips represents a defeat for Scott and top adviser Melinda Miguel, who had urged the governor to suspend David Di Pietro from the chairmanship of the seven-member North Broward Hospital District board. The system operates under the business name Broward Health and is one of the largest tax-supported health systems in the country.

The judge rejected all of Scott's legal arguments, quashed his executive order and demanded that Di Pietro be returned to office "forthwith."

Di Pietro, 36, a Fort Lauderdale lawyer and Republican fundraiser, said Scott had no right to suspend him without a factual basis.

"I am pleased and gratified at the judge's ruling," Di Pietro said in a statement. "The order is vindication of my service at Broward Health. … I am proud of my record of fighting corruption at Broward Health, and with my reinstatement, I intend to continue to champion multiple transparency and accountability reforms."

In her seven-page order, the judge wrote: "The Florida Constitution and Florida Statutes demand that a suspension of any elected or appointed official 'shall specify facts sufficient to advise both the officer and the Senate as to the charges made or the basis of the suspension.' "

Phillips cited as a precedent a 1934 case in which a governor suspended a sheriff in Miami-Dade County.

By law, a governor may suspend public officers, who could be removed from office after a trial by the Florida Senate.

Miguel, who holds the title of chief inspector general, began a review of the hospital district's "condition and operations" six days after the district's chief executive officer, Dr. Nabil El Sanadi, committed suicide on Jan. 23.

El Sanadi had hired a private investigator to look into allegations of purchasing improprieties, and the district's financial stability was affected by its agreement to pay $69.5 million in a federal lawsuit that accused doctors of enriching themselves at the expense of taxpayers.

Scott suspended Di Pietro and a second hospital board member, Darryl Wright, on March 18 after Miguel sent him a letter in which she said the suspensions "would send a strong message to the Broward Health employees that interference, retaliation and malfeasance will not be tolerated."

But as Miguel demanded mountains of hospital district records, four of seven board members, led by Di Pietro, hired an outside law firm, Berger Singerman, which has ties to Democrats from Fort Lauderdale to Washington.

The firm's report concluded that board members did nothing wrong.

In a two-hour hearing in Phillips' Fort Lauderdale courtroom last week, Scott's attorneys called the hiring of the outside law firm "a classic interference" prohibited by the hospital district charter that was an act of malfeasance warranting Di Pietro's suspension.

The judge rejected that argument, as well.

"This court must conclude that the executive order fails to allege a single fact that bears a reasonable relation to the charge that (Di Pietro) violated the charter," Phillips wrote.

Di Pietro's reinstatement could be ominous news for Lynn Barrett, the district's general counsel. Di Pietro tried unsuccessfully to round up the votes needed to fire her before he was suspended, and he told the Times/Herald recently that he has lost confidence in her.

For at least three decades, the hospital district board has been the subject of criticism for political cronyism, insider dealing, exorbitant salaries and no-bid contracts.

As governor, Scott, like his predecessors, stocked the board with Republican allies, including Di Pietro, who was an early supporter in Broward, Florida's largest and most reliable Democratic county.

Scott was represented in the case by Attorney General Pam Bondi's office, which referred questions to Scott's team. Scott spokeswoman Jeri Bustamante said the governor's office was reviewing Phillips' decision.

The governor can appeal it to the 4th District Court of Appeal.

Phillips, 52, is a registered Republican who was appointed to the bench by former Gov. Jeb Bush in 2003. She is the wife of Jim Naugle, a former mayor of Fort Lauderdale who left office in 2009.

Contact Steve Bousquet at [email protected] Follow @stevebousquet.

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